The rule of law and the rights of elderly persons in the Asia Pacific

22 June 2017 | Bill Mitchell, Principal Solicitor of Townsville Community Legal Service, and member of the National Association of Community Legal Centre's Older Person's Legal Services Network

The rule of law and human rights are intricately linked. The UN has noted that there is no rule of law within society if human rights are not observed and protected. Conversely, human rights cannot be protected in a society without a strong rule of law.¹ The rule of law is the implementation mechanism for human rights, turning them from principle into a reality.² This gap between principle and reality of rights is stark for older persons.

Older persons are the only vulnerable group without their own human rights treaty. This has left them languishing within a normative gap. Existing human rights instruments offer protection, though older persons' relegation to "other status" in international jurisprudence fails to acknowledge, let alone address, elder specificities,³ nor does it legitimize their political identity. Older persons are often invisible in society, existing without recognition as legitimate rights holders. They are still pitied as passive welfare recipients. We practice benevolent prejudice on a global scale.

In 2011, the United Nations' General Assembly established the Open Ended Working Group on Ageing (OEWGA) with a mandate to investigate the feasibility of a Convention on the Rights of Older Persons.⁴ This was a quantum leap in the public discourse of older persons' rights. Historically, the debate about older persons' rights goes back to 1948 when First Lady of Argentina Eva Peron's draft Declaration of Old Age Rights came before the UN. Argentina proposed the declaration alongside the draft Universal Declaration of Human Rights (UDHR). Eleanor Roosevelt, who kept a journal of her observations of the UDHR debates, wondered whether young persons should also be included.⁵ Children eventually got their Convention in 1990 but the declaration on old age rights never got off the starting block.

The 1991 UN Principles for Older Persons and 2002 Madrid International Plan of Action on Ageing (MIPAA) are both soft law responses without binding effect. The debate within the UN Economic and Social Commission for Asia and the Pacific region has been slow to start but has begun momentum around this issue. In 2014, the UN brought experts together for a workshop on the Rights of Older Persons in the Asia- Pacific region. Participants noted a Convention would create shared definitions in difficult areas such as elder abuse, and provide guidance at national and regional levels, currently lacking in the region.⁶

Academics in the field of elder abuse have debunked the myth that the Confucian virtue of filial piety (the philosophy to respect one's parents, elders and ancestors) remains. China's 2013 law ordering children to visit elderly parents attracted 17 million comments online, many of them negative and disparaging of older persons. Even further back Yamada coined Japan's parasaito shinguru literally "parasite singles" who remain at home until early middle age to enjoy a more comfortable and carefree life – often at the expense of their elderly parents.

"It seems elder abuse knows no geographic boundaries and different cultures find characteristic manifestations on their own shores. Some are common to all cultures. In all places elder abuse is an aspect of ageism. It takes many forms including prejudice, discrimination, harassment, vilification, violence, abuse and neglect."

In an era of ageing in place, this is ideal if the children are looking after their parents, yet this contemporaneity of purpose rarely features.

Yan noted elder abuse is growing in many Asian countries at an unprecedented rate.⁷ Her work noted culturally specific forms of mistreatment that differ from Western perspectives. Consistent across the studied countries (China, Taiwan, India, Singapore, Japan, South Korea) was that disrespect was central to actions, attitudes and behaviours. Unlike Western prevalence studies, caregiver neglect ranked higher than financial abuse. Older persons in the studies variously described themselves like a "ball being kicked among relatives" or "transparent".⁸

It seems elder abuse knows no geographic boundaries and different cultures find characteristic manifestations on their own shores. Some are common to all cultures. In all places elder abuse is an aspect of ageism. It takes many forms including prejudice, discrimination, harassment, vilification, violence, abuse and neglect. Ageism is now said to be more prevalent than sexism and racism and has complex cultural, intergenerational tensions as part of its narrative.

Countries debating whether the world needs a Convention have bickered back and forth about whether substantive gaps exist. They do exist and are multidimensional.⁹ Countries with large number of older persons, or with especially ageing populations, count the potential cost of giving older persons rights to health, housing and pensions. Rights do cost. Countries avoid the controversies. Like deciding what rights we should enjoy at end of life. Like how our personal autonomy is respected and maintained against the backdrop increased prevalence of dementia.

These are serious questions from a human rights perspective. How will governments pay for our longevity, or at least for those people who enjoy the benefits of medical advancements? Inequity still plagues society on many levels. Just here in Australia, life expectancy is characterised by a gap of unacceptable proportions. For Australians, life expectancy places us fourth in the world or one-hundred and fourth in the world if you are Aboriginal or Torres Strait Islander.¹⁰ In poorer countries access to basic health care is lacking. Imagine experiencing the pain of terminal cancer without even the most basic pain relief medication. The right to healthcare isn't always about big shiny hospitals, though they obviously matter. It is also about adult vaccination, access to aids for vision, hearing mobility and so on.

Two regions have recently introduced regional instruments to entrench older persons' rights. These include including the African Union and the Organization of American States. While these drafts aren't perfect, they represent serious progress. They represent momentum. At a global level, arguments against a Convention are reductionist and tend to polarise around a few key points. Firstly, the votes on key resolutions show ambivalence for a Convention. Secondly, existing soft law (like the Madrid International Plan of Action on Ageing) or instruments (like the Convention on the Rights of Persons with Disability) or reporting processes (like Universal Periodic Review) are adequate. Thirdly, the cost and compliance burden for countries militates against further proliferation of treaties. Fourthly, a Convention would only be useful where ratified.

In spite of these arguments, there has been an opening of political space within the debate and many countries who were on the fence are beginning to listen more closely to the arguments; making clear they are open to discussion about a new multilateral instrument. They want to know what substantive issues might be included. While commentators scoffed at China's Elderly Rights Law, perhaps we ought to see it is as both backward and forward looking. It obviously reflects Confucian ideals and also evokes Evita's 1948 declaration "that if families refuse to care for aged members, then the state should force them to do so by law."¹¹ Importantly, it also signals our future, one benefiting from a set of universal expectations for older persons.

Independent Expert on the Enjoyment of all Human Rights by Older Persons, Rosa Kornfeld-Matte has noted current soft laws are not human rights instruments and address ageing issues mainly from a developmental perspective. They are not designed to comprehensively address existing protection gaps and are therefore not sufficient to ensure the full enjoyment of their human rights by older persons.

The UN meets in July 2017 to look at two specific issues: 1) Equality and Non-discrimination and 2) Violence, Abuse and Neglect. These two aspects of a potential Convention are fundamental framing elements. Many ESCAP member states will be there. As will National Human Rights Institutions for the first time, thanks to a historic resolution in December 2016.¹² The involvement of NHRIs will broaden and deepen the debate about the rights of older persons. Those from Asia Pacific will bring their own particular experience of the rights of older persons.

A Convention is a way of shifting older persons from invisibility to visibility, from ageism to dignity and respect. The rule of law is the vehicle for the promotion and protection of a multilateral normative framework such as a Convention.¹³

¹ https://www.un.org/ruleoflaw/rule-of-law-and-human-rights/
² Ibid.
³ Paul De Hert, Eugenio Mantovani, Specific Human Rights for Older Persons, [2011] EHRLR, Issue 4, 400; Frederic Megret, The Human Rights of Older Persons: A Growing Challenge, Human Rights Law Review (2011) 11 (1): 37-66.
⁴ A/RES/65/182; A/RES/67/139; A/RES/70/164
⁵ See http://www.encyclopedia.com/politics/news-wires-white-papers-and-books/my-day-9#n3.
⁶http://www.unescap.org/events/workshop-social-integration-and-rights-older-persons-asia-pacific-region .
⁷ Forum on Global Violence Prevention; Board on Global Health; Institute of Medicine; National Research Council. Elder Abuse and Its Prevention: Workshop Summary. Washington (DC): National Academies Press (US); 2014 Mar 18. II.10, ELDER ABUSE IN ASIA—AN OVERVIEW.
⁸ Ibid.
⁹ Office of the High Commissioner for Human Rights, Normative standards in international human rights law in relation to older persons, Analytical Outcome Paper, August 2012
¹⁰ https://en.wikipedia.org/wiki/List_of_countries_by_life_expectancy#List_by_the_OECD_.282013.29
¹¹ Above note 3.
¹² A/AC.278/2016/L.1.
¹³ Above note 1.